Title: Legal (Un)Certainty, Legal Process, and Patent Law
Abstract: Concern for certainty is ubiquitous in the law. Some degree of determinacy in the content and application of laws is necessary for individuals to identify the scope of their rights and to ensure that their conduct conforms with legal constraints. In patent law, lack of determinacy has the potential to undermine a fundamental goal of the patent system - providing an incentive for creators to invent and to publicly disclose their inventions. A patent (the incentive) is only as valuable as the laws that give force to it. With an exceedingly uncertain reward, the incentive effect may diminish. Recent criticism of patent law and the institutions that apply it, particularly the U.S. Court of Appeals for the Federal Circuit, has asserted that patent law suffers from an unreasonably high level of uncertainty or unpredictability that threatens the patent system’s ability to stimulate innovation. Yet many of the demands for certainty in patent law have been vague and fail to present a complete view of the causes for uncertainty in the patent system. This Article seeks to deepen the determinacy debate by comprehensively examining sources of uncertainty in patent law. All areas of law experience some baseline entropy, and theories explaining uncertainty in other areas of the law and in the legal system generally are useful in understanding, and lending perspective to, the current state of patent law. In addition to exploring some of those theories, this Article discusses two systemic sources of uncertainty in patent law: first, uncertainty that results from patent law’s public institutions; and second, uncertainty that results from private actors in the patent system. Specifically, with regard to the first category, the Federal Circuit experiences an upward pressure for bright-line rules from patent law’s administrative agency and the district courts, countered by a downward pressure for flexible standards from the U.S. Supreme Court, resulting in oscillation in the law. As to the second category, the strategic value of vague claims and broad descriptions of inventions provides an incentive for inventors to inject uncertainty into their patents, making rights to practice competing technologies indeterminate. Although the extent of uncertainty in patent law caused by these public and private sources is neither highly unusual nor a fatal flaw in the system, this Article concludes by offering a general framework and some specific tools for managing and assessing uncertainty. This Article accordingly presents a critique of the demand for certainty in patent law and advocates a more measured debate over indeterminacy in the patent system.
Publication Year: 2010
Publication Date: 2010-01-01
Language: en
Type: article
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Cited By Count: 10
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